Kelson v. Clark

Case: 20-10764 Document: 00515904408 Page: 1 Date Filed: 06/17/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 17, 2021

No. 20-10764 Lyle W. Cayce

Clerk

Christopher Kelson; Dakota Kelson, and Estate of

Hirschell Fletcher, Jr.; Rylie Kimbrell; Estate of

Hirschell Fletcher, Jr.,

Plaintiffs—Appellees,

versus

Kyle Foster Clark, Firefighter; Brad Alan Cox, Firefighter,

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-3308

Before Wiener, Elrod, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

This interlocutory appeal arises out of the district court’s denial of

defendants Kyle Clark and Brad Cox’s motion to dismiss on the basis of

qualified immunity for claims of failure to treat and the wrongful death of

Hirschell Wayne Fletcher, Jr., who died from previously sustained head

trauma while in custody. We AFFIRM.

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I.

As alleged in the plaintiffs’ operative complaint, at approximately 5:30

p.m. on December 30, 2016, Hirschell Wayne Fletcher, Jr., who was

homeless and previously diagnosed with schizophrenia, was assaulted and

robbed outside a soup kitchen in Dallas, Texas. Shortly thereafter, Fletcher

was again assaulted—this time, a punch to the head—causing him to fall and

hit his head on a wall. Bystanders subsequently alerted Dallas Police Officer

George Morales to the incident. After briefly speaking to Fletcher, Morales

called two fellow officers as well as two Dallas Fire-Rescue paramedics, Kyle

Clark and Brad Cox, to the scene.

Fletcher told the officers and paramedics that he needed medical

attention for his head injuries, for which it is alleged that “[b]lood and

contusions from the beatings was [sic] patently visible.” However, “instead

of examining and treating him,” the officers and paramedics “began

harassing and openly laughing” at Fletcher for ten minutes as he sat on the

sidewalk in pain.1 It is further alleged that the police officers “assumed

Fletcher to be drunk,” but “made no investigation to determine whether

Fletcher was intoxicated.” 2

Fletcher was subsequently arrested, charged with public intoxication,

and taken to the Dallas Marshal’s Office and City Detention Center.

Fletcher continued to complain of his visible head injuries and need for

1

This interaction was also recorded on Officer Morales’s body and car cameras.

2

On appeal, plaintiffs say that Fletcher was “sober,” but this is not expressly

alleged in the operative complaint, which alleges only that “Defendants Morales, Todd,

and Morris assumed Fletcher to be drunk” and that they “made no investigation to

determine whether Fletcher was intoxicated before or after arresting and imprisoning

Fletcher and thereafter charging him for public intoxication . . . solely because he was

homeless and mentally ill.”

2

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medical attention to Officer Morales while in transit and again to the booking

officers upon arrival at the detention center.

Once booked, Fletcher lay underneath a mattress in his cell and was

allegedly ignored by the officers who passed by intermittently. The next

morning, at 5:00 a.m. on December 31, 2016, Fletcher was found

unresponsive in his cell and rushed to the hospital. He died shortly thereafter

due to a bleed caused by the head injuries he sustained the day before.

Allegedly, paramedics Clark and Cox later falsely stated in their

reports that they never had any contact with Fletcher on December 30, 2016,

to “cover up their egregious behavior.” Clark and Cox were subsequently

indicted in Dallas County state court for “falsifying their report stating that

Fletcher had been taken from the scene prior to their arrival.” 3

In December 2018, Fletcher’s estate and children subsequently filed

this suit for monetary damages pursuant to 42 U.S.C. § 1983 against the City

of Dallas, the individual Dallas police officers, the two paramedics (Clark and

Cox), and the individual detention facility employees. This interlocutory

appeal involves only the claims against paramedics Clark and Cox for failure

to treat in violation of the Fourteenth Amendment and a derivative wrongful

death claim.

On September 13, 2019, Clark and Cox moved to dismiss the two

claims against them on the basis of qualified immunity. On July 14, 2020, the

3

At the time of the operative complaint, Clark and Cox’s criminal cases were still

pending. Since then, plaintiffs assert that “Clark and Cox both pled guilty to the charges

for tampering with a government record,” and ask us to take judicial notice of those guilty

pleas. We need not do so here because it is enough at this stage to accept as true, as we

must, plaintiffs’ well-pleaded allegations that the paramedics were indicted for this

conduct.

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district court summarily denied their motion in a two-paragraph order. Clark

and Cox timely appealed the district court’s denial of qualified immunity. 4

II.

“[A] district court’s denial of a claim of qualified immunity, to the

extent that it turns on an issue of law, is an appealable ‘final decision’ within

the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final

judgment. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Consequently, we

have jurisdiction to review Clark and Cox’s interlocutory appeal of the

district court’s denial of qualified immunity under the collateral order

doctrine. Id.; Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012).

We review the district court’s denial of Clark and Cox’s motion to

dismiss de novo. 5 McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017). In doing

so, “we must accept all well-pleaded facts as true and draw all reasonable

inferences in favor of the nonmoving party.” Morgan v. Swanson, 659 F.3d

359, 370 (5th Cir. 2011) (en banc). However, we do not presume to be true

4

Clark and Cox are represented separately from the other defendants. The Dallas

police officers and detention facility employees also moved to dismiss the § 1983 claims

against them for failure to state a claim under Rule 12(b)(6), but they did not assert qualified

immunity. The district court denied this motion in the same order denying Clark and Cox’s

qualified immunity defense. Since then, on August 4, 2020, the remaining defendants

moved for summary judgment asserting, inter alia, qualified immunity. On October 6,

2020, the district court granted the parties’ joint request to stay the case pending this

court’s resolution of Clark and Cox’s interlocutory appeal, while noting that the City and

police officers’ motion for summary judgment remains pending.

5

Ordinarily “[d]istrict courts should state for the record the reasons for denying

immunity. We assume from the district court’s form dismissal, however, that it found that

disputed issues of material fact existed, which, if true, would constitute violations of clearly

established law by [Clark and Cox].” Morin v. Caire, 77 F.3d 116, 119 n.3 (5th Cir. 1996)

(citations omitted); accord Schaper v. City of Huntsville, 813 F.2d 709, 713 (5th Cir. 1987)

(“[D]istrict courts should state for the record, and for the benefit of the circuit court on

appeal, their reasons for denying immunity.”).

4

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“legal conclusions; mere ‘labels’; ‘[t]hreadbare recitals of the elements of a

cause of action’; ‘conclusory statements’; and ‘naked assertions devoid of

further factual enhancement.’” Id. (alteration in original) (quoting Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)). Though the complaint need not contain

“detailed factual allegations,” it must contain sufficient factual material that,

accepted as true, “allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). “[O]f

course, a well-pleaded complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556.

“When a defendant asserts a qualified-immunity defense in a motion

to dismiss, the court has an ‘obligation . . . to carefully scrutinize [the

complaint] before subjecting public officials to the burdens of broad-reaching

discovery.’” Longoria v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 258,

263–64 (5th Cir. 2019) (alterations in original) (quoting Jacquez v. Procunier,

801 F.2d 789, 791 (5th Cir. 1986)). “[A] plaintiff seeking to overcome

qualified immunity must plead specific facts that both allow the court to draw

the reasonable inference that the defendant is liable for the harm he has

alleged and that defeat a qualified immunity defense with equal specificity.”

Backe, 691 F.3d at 648. Courts are obligated to “implement a qualified

immunity defense ‘at the earliest possible stage of litigation,’” because

“qualified immunity means immunity from having to stand trial, not simply

immunity from monetary liability.” Westfall v. Luna, 903 F.3d 534, 542 (5th

Cir. 2018) (quoting Brown v. Glossip, 878 F.2d 871, 874 (5th Cir. 1989)).

“The doctrine of qualified immunity protects government officials

from civil damages liability when their actions could reasonably have been

believed to be legal.” Morgan, 659 F.3d at 370. “When a defendant invokes

qualified immunity, the burden is on the plaintiff to demonstrate the

inapplicability of the defense.” McClendon v. City of Columbia, 305 F.3d 314,

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323 (5th Cir. 2002) (en banc). The plaintiff must show “(1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Morgan, 659 F.3d at 371

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).

III.

The plaintiffs primarily assert that paramedics Clark and Cox violated

Fletcher’s Fourteenth Amendment right when they failed to treat his visible

head wounds, which ultimately led to his death. See Hare v. City of Corinth,

74 F.3d 633, 645 (5th Cir. 1996) (en banc). Specifically, they claim that Clark

and Cox “were trained to provide medical care, they had a duty to assess and

render care to those in need, . . . and they breached that duty.”

“[P]retrial detainees have a constitutional right, under the Due

Process Clause of the Fourteenth Amendment, not to have their serious

medical needs met with deliberate indifference.” Thompson v. Upshur Cnty.,

245 F.3d 447, 457 (5th Cir. 2001) (citing, inter alia, Estelle v. Gamble, 429 U.S.

97, 103 (1976), and Hare, 74 F.3d at 636). “To succeed on a deliberate-

indifference claim, plaintiffs must show that (1) the official was ‘aware of

facts from which the inference could be drawn that a substantial risk of

serious harm exists,’ and (2) the official actually drew that inference.” Dyer

v. Houston, 964 F.3d 374, 380 (5th Cir. 2020) (quoting Domino v. Tex. Dep’t

of Crim. Just., 239 F.3d 752, 755 (5th Cir. 2001)).

“Deliberate indifference is an extremely high standard to meet.” Id.

(quoting Domino, 239 F.3d at 756). An official is not liable unless he “knows

of and disregards an excessive risk” to a plaintiff’s safety. Garza v. City of

Donna, 922 F.3d 626, 635 (5th Cir.) (quoting Farmer v. Brennan, 511 U.S. 825,

837 (1994)), cert. denied, 140 S. Ct. 651 (2019). However, “deliberate

indifference cannot be inferred merely from a negligent or even a grossly

negligent response to a substantial risk of serious harm.” Thompson, 245 F.3d

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at 459 (citing Hare, 74 F.3d at 649–50). Rather, “the plaintiff must show that

the officials ‘refused to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.’” Domino, 239 F.3d

at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)); accord

Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006).

A.

As a threshold matter, the parties dispute whether plaintiffs

adequately allege that Fletcher was in police custody as an arrestee or pretrial

detainee. The parties agree that the paramedics’ obligations under the

Fourteenth Amendment began only once Fletcher was detained by the

police. However, Clark and Cox assert that the “pleadings fail to establish

that Fletcher was in custody at the time that Clark and Cox allegedly failed

to treat him.”

“After the initial incidents of a seizure have concluded and an

individual is being detained by police officials but has yet to be booked, an

arrestee’s right to medical attention, like that of a pretrial detainee, derives

from the Fourteenth Amendment.” Nerren v. Livingston Police Dep’t, 86 F.3d

469, 473 (5th Cir. 1996). In the Fourth Amendment context, “a seizure

occurs when, under the totality of the circumstances, a reasonable person

would have thought he was not free to leave.” Keller v. Fleming, 952 F.3d

216, 222 (5th Cir. 2020) (citing Michigan v. Chesternut, 486 U.S. 567, 572

(1988)). “Physical force is not required to effect a seizure; however, absent

physical force, ‘submission to the assertion of authority’ is necessary.”

McLin, 866 F.3d at 691 (quoting California v. Hodari D., 499 U.S. 621, 626

(1991)); accord Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) (“Only when the

officer, by means of physical force or show of authority, has in some way

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restrained the liberty of a citizen may we conclude that a ‘seizure’ has

occurred.”).

Clark and Cox principally argue that the complaint does not allege that

Fletcher was physically restrained at the time they arrived on the scene, and

that after their alleged failure to treat Fletcher, he was “thereafter” arrested

and taken to the detention facility. Clark and Cox concede, as they must, that

“a reasonable person would not have thought that Fletcher was free to leave

once Fletcher was being transported to the City’s detention facility in Officer

Morales’ patrol car,” but that “prior to that point, Fletcher was neither an

arrestee nor pretrial detainee . . . [while] just sitting on the sidewalk talking

with the officers and paramedics.” By contrast, the plaintiffs argue that

Fletcher was detained earlier: he “submitted to police authority and

reasonably believed [he] was not free to leave [] while on the street before

being transported to the Detention Center.” 6

While we agree with Clark and Cox that the precise timeline of events

is underdeveloped, “detailed factual allegations” are not required at the

pleadings stage. See Iqbal, 556 U.S. at 678. Mindful of the standards

governing Clark and Cox’s motion to dismiss, and drawing all reasonable

inferences in favor of the nonmoving party, the plaintiffs have pleaded

sufficient factual material to allege that Fletcher was detained.

For example, by the time Clark and Cox arrived, the plaintiffs allege

that Officer Morales had already called two other police officers to the scene.

With the arrival of the two paramedics, the plaintiffs allege that Fletcher was

surrounded, and harassed, by five officers while he sat on the sidewalk.

6

Plaintiffs also assert on appeal that Fletcher was “intercepted and forced to sit on

the sidewalk.” We do not rely on these statements because they are not alleged in the

operative complaint.

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Fletcher was subsequently arrested, cited for public intoxication, and

transported to the detention facility.

Consequently, we agree with the plaintiffs that between when Clark

and Cox arrived and allegedly failed to treat Fletcher, but before he was

formally transported, a reasonable person in Fletcher’s position—

surrounded and confronted by five officers—may not have thought he was

free to leave, and was therefore detained. Clark and Cox’s alternative

argument rests on an overly narrow reading of the operative complaint and

an undue reliance on the word “thereafter.”

B.

Next, we consider whether the plaintiffs sufficiently allege that

Fletcher’s constitutional rights were violated. The parties do not dispute

that pretrial detainees have a Fourteenth Amendment right to medical care.

See Hare, 74 F.3d at 645; Thompson, 245 F.3d at 457; Dyer, 964 F.3d at 380.

Rather, we must determine whether the plaintiffs here adequately allege that

paramedics Clark and Cox acted with deliberate indifference in failing to treat

Fletcher.

After arriving on the scene, Clark and Cox allegedly failed to provide

any substantive treatment to Fletcher, despite “patently visible” “[b]lood

and contusions” and Fletcher’s repeated protestations of a head injury.

Contrary to Clark and Cox’s assertions, the paramedics were not “merely”

negligent in failing to provide “additional treatment,” or because they

provided an “incorrect diagnosis”—both of which our court has emphasized

are insufficient to establish deliberate indifference. See Dyer, 964 F.3d at 381;

Domino, 239 F.3d at 756. Here, the plaintiffs allege that the paramedics

entirely failed to treat Fletcher despite his protestations and visible head

injuries. To the extent Clark and Cox assert that they could not have been

expected to diagnose Fletcher’s internal bleeding, our court has emphasized

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that an “official’s knowledge of a substantial risk of harm may be inferred if

the risk was obvious.” Easter, 467 F.3d at 463–64 (distinguishing “mere

disagreement with the course of treatment” from allegations that nurse

refused to provide treatment to prisoner complaining of severe chest pain

after being informed of his history of cardiac problems, which “meets the

‘deliberate indifference’ threshold”).

Moreover, instead of treating or even evaluating the visible head

injuries, Clark and Cox allegedly mocked Fletcher and then, in an apparent

attempt to cover their tracks, allegedly lied in their official report about

interacting with Fletcher at all. Taken together, this is enough to allege that

the officials “refused to treat him,” “ignored his complaints,” and engaged

in conduct that “clearly evince[d] a wanton disregard for any serious medical

needs.” Domino, 239 F.3d at 756 (internal quotation marks and citation

omitted).

Clark and Cox’s contrary arguments are unavailing. They primarily

assert that Fletcher’s allegations are indistinguishable from Dyer v. Houston,

in which this court affirmed the paramedics’ motion to dismiss based on

qualified immunity. 964 F.3d at 380–81. We disagree.

In Dyer, the plaintiffs brought deliberate indifference claims against

the paramedics and officers following the death of their 18-year-old son,

Graham, who died in police custody. Id. at 377. When the paramedics arrived

on the scene, they examined Graham, who “had sustained a visible and

serious head injury,” and learned that he “had ingested LSD and was

incoherent and screaming . . . and was in a drug induced psychosis.” Id. at

377–78. Following the paramedics’ examinations, Graham was “walked to

the police car without resistance or struggle” and driven to jail. Id. at 378.

While being transported by the police officers (but not the paramedics),

Graham repeatedly bashed his head against the car over 40 times, and

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subsequently died as a result of the “extensive blunt force injuries to [his]

head and cranial hemorrhaging.” Id. at 379.

The Dyer plaintiffs claimed that the paramedics violated Graham’s

Fourteenth Amendment right because, “after examining Graham and

observing his head injury and drug-induced behavior,” they should have

provided additional care, such as sending Graham to the hospital, providing

further monitoring, or sedating him. Id. at 381. In affirming the district

court’s dismissal of these claims, this court held that the parents alleged “[a]t

most . . . that the Paramedics acted with negligence in not taking further steps

to treat Graham after examining him,” which is insufficient to support a

deliberate indifference claim. Id. Moreover, “the decision whether to

provide additional treatment is a classic example of a matter for medical

judgment, which fails to give rise to a deliberate-indifference claim.” Id.

(internal quotation marks and citations omitted).

As in Dyer, Clark and Cox assert that the plaintiffs here allege that the

paramedics failed to properly treat Fletcher or bring him to the hospital

despite being alerted that he suffered a serious head injury. But that is where

the similarities end. Unlike in Dyer, Clark and Cox’s alleged conduct

demonstrated that they had a greater awareness of Fletcher’s visible head

injuries—both allegedly in the moment and after the fact in their false

reporting—yet simultaneously they provided less treatment than the Dyer

paramedics. 7

7

On this point, our court’s reversal of the district court’s dismissal of the deliberate

indifference claims against the officers in Dyer v. Houston is also illustrative. Dyer, 964 F.3d

at 381. There, in reviewing the summary judgment record, we concluded that a reasonable

factfinder could find that the Dyer officers were aware that Graham, “in the grip of a drug-

induced psychosis, struck his head violently . . . over 40 times en route to jail and thereby

sustained severe head trauma,” yet “sought no medical care” for him, “[n]or did they alert

jail officers” of the incident. Id. at 381–82. Consequently, we held that “[a] reasonable

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Clark and Cox further attempt to minimize these allegations,

contending that “inappropriate comments and/or laughing are legally

irrelevant” to deliberate indifference claims. Not so. For example, in

affirming the officers’ motion for summary judgment on the deliberate

indifference claims in Aguirre v. City of San Antonio, 995 F.3d 395 (5th Cir.

2021), the court noted that an officer’s demeanor is relevant to determining

whether he subjectively disregarded a risk of serious harm. In that case, the

police’s dashcam videos showed that the officers surrounding Aguirre—who

was lying in a prone, “hog-tie-like” position, ultimately leading to his death

from asphyxiation—were “smiling and laughing” before an officer

attempted CPR. Id. at 403–04. However, the court emphasized that the

officers “quickly took on a sober aspect as Aguirre remained unresponsive,

which suggests their initial manner was the result of subjective unawareness

of the risk rather than knowledge of the risk and a deliberate choice not to

take any precautions against the realization of the danger’s fatal

consequences.” Id. at 421. 8

By contrast, the plaintiffs here allege that Clark, Cox, and the

surrounding officers harassed and laughed at Fletcher until he was

transported to the detention facility, all without any medical treatment. As

jury could find that Graham’s injuries—from which Graham would die within roughly 24

hours—were so severe, and their cause so plainly evident to the Officers, that the Officers

acted with deliberate indifference by failing to seek medical attention” and “failing to

inform jail personnel about [his] injuries.” Id.

8

Clark and Cox cite other inapposite authority for the proposition that an officer’s

threats or use of racial slurs are insufficient to sustain an excessive force claim, which are

not germane to plaintiffs’ allegations here. See Bender v. Brumley, 1 F.3d 271, 274 & n.4

(5th Cir. 1993) (“Mere allegations of verbal abuse do not present actionable claims under

§ 1983.” (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983))).

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alleged, such conduct supports that the paramedics may have been both

subjectively aware of, and disregarded, Fletcher’s serious risk of injury. 9

C.

As to the second prong of qualified immunity, we consider whether

Fletcher’s constitutional rights were clearly established at the time plaintiffs

allege that he was denied treatment. Our analysis under this prong “asks

whether the detainee’s right to treatment for serious medical needs was

‘clearly established’ such that every ‘reasonable official would understand

that what [he] is doing violates that right.’” Baldwin v. Dorsey, 964 F.3d 320,

326 (5th Cir. 2020) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)),

cert. denied, 141 S. Ct. 1379 (2021). “To answer that question in the

affirmative, we must be able to point to controlling authority—or a ‘robust

consensus of persuasive authority’—that defines the contours of the right in

question with a high degree of particularity.” Morgan, 659 F.3d at 371–72

(quoting al-Kidd, 563 U.S. at 742); accord Mullenix v. Luna, 577 U.S. 7, 12

(2015) (“We do not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question beyond debate.”

(quoting al–Kidd, 563 U.S. at 741)).

It is undisputed that, at the time Clark and Cox allegedly failed to treat

Fletcher, the law was clearly established that pretrial detainees have a

Fourteenth Amendment right to medical care. See, e.g., Hare, 74 F.3d at 645;

Thompson, 245 F.3d at 457; Dyer, 964 F.3d at 380; see also Jacobs v. W.

Feliciana Sheriff’s Dep’t, 228 F.3d 388, 393–94 (5th Cir. 2000). Nor is it

disputed that plaintiffs could demonstrate a violation of Fletcher’s

9

Clark and Cox also argue that plaintiffs’ derivative wrongful death claim should

be dismissed because the plaintiffs fail to allege a plausible failure to treat claim. Because

we conclude otherwise, Clark and Cox’s dismissal challenge to the wrongful death claim

likewise fails.

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constitutional rights by showing that an official “‘refused to treat him,

ignored his complaints, intentionally treated him incorrectly, or engaged in

any similar conduct that would clearly evince a wanton disregard for any

serious medical needs.’” Domino, 239 F.3d at 756 (quoting Johnson, 759 F.2d

at 1238); Easter, 467 F.3d at 464 (same).

Instead, Clark and Cox argue that clearly established law does not

require them to provide medical care to an individual who is “not a pretrial

detainee.” This is irrelevant; for the reasons previously stated, Fletcher was

allegedly detained at the relevant time. Alternatively, Clark and Cox contend

that the law does not require them to diagnose an “internal brain bleed that

was not observable to the naked eye.” But that mischaracterizes the

complaint, which alleges that the paramedics failed to treat Fletcher’s visible

head injuries at all.

IV.

For the foregoing reasons, the district court’s denial of Clark and

Cox’s motion to dismiss on the basis of qualified immunity is AFFIRMED.

14